Interests of children should not prevent extradition for serious offences

These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three was whether extradition would be incompatible with the rights of the appellants’ children to respect for private and family life under Article 8 of the ECHR.

Put very briefly, HH and PH had been arrested in Italy on suspicion of drug trafficking. They left Italy in breach of their bail conditions and went to the United Kingdom. They were convicted in their absence. European arrest warrants were later issued. They challenged their extradition on the basis of the effect that it would have on their three children, the youngest of whom was 3 years old.

FK was accused of offences of dishonesty alleged to have occurred in 2000 and 2001. She had left Poland for the UK in 2002 and European arrest warrants had been issued in 2006 and 2007. F had five children, the youngest of whom were aged eight and three. She has not been tried or convicted of the alleged offences yet.

The Supreme Court unanimously allowed the appeal in the case of FK: see Doughty Street’s post on this “historic win”. But the appeal in respect of HH was unanimously dismissed, and the Court also dismissed PH’s appeal, Lady Hale dissenting. Whilst they were prepared to acknowledge that extradition cases should not be treated as falling into a special category which diminishes the article 8 issues arising out of the separation of parents from their children, the majority took the view that, in cases where the offence is serious, the public interest in extradition outweighs the interests of the children. FK’s case, involving a “comparatively routine” crime of dishonesty, was different. But with a major drug smuggling conspiracy, persisted in over many months, the rights of the children should not be prioritised over the public interest in returning her parents to Italy to serve out their sentence. Although the father, PH, had become the children’s primary carer since H’s mental health had deteriorated, he had been crucial to the success of the drug trafficking and he had no personal mitigation. Further, he had almost immediately broken his bail conditions in Italy. There was a very strong public policy consideration that professional criminals who broke bail conditions abroad should not find a safe haven in the UK. In Lord Hope’s view it was not open to them, as a requested court,

to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and the proper place for leniency to be exercised, if there are grounds for leniency, is Italy.

In particular, Lady Hale observed that the youngest child in the drug smuggling case had been conceived “very soon after” the parents were arrested on the EAWs:

No court wishes to send a message that drug smugglers – or other serious criminals – might escape extradition by getting their partners pregnant.

Although there had been no finding by the District Court that this was a deliberate attempt by the mother to evade justice, she was minded to observe that it would have made the parents’ offending behaviour “even more serious” than it already was:

it is an act of some wickedness deliberately to bring a child into the world in an attempt to evade justice. It would have added to the weight on one side of the scales, while in no way diminishing the weight to be given to the child’s interests on the other.

As for F, she and her family had made a new and blameless life in the UK. In the circumstances, the public interest in extraditing F was not such as to justify the inevitable severe harm to the interests of the youngest children in doing so.

As for the role of Article 8 in extradition proceedings generally, Lord Hope’s detailed assessment provides helpful guidance through the maze of cases, concluding thus:

for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania)did not diminish that imperative. When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided

The following report of the judgement is based on the Supreme Court’s press summary.

Judgment and reasons

References in square brackets are to paragraphs in the judgment

The application of article 8 of the ECHR in the context of extradition was considered by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The case concerned the effect on Mrs Norris of her husband of many years being extradited to face charges of conspiracy. Whilst not involving the rights of children, the following principles can nonetheless usefully be drawn from that case [08].

First, there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation, but the court must still carefully examine the way in which it will interfere with family life. Secondly, there is no test of exceptionality. Third, the question is whether the interference with private and family life is outweighed by the public interest in extradition. Fourthly, there is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no “safe haven” for fugitive offenders. Fifthly, the public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved. Sixthly, delay in seeking extradition may diminish the public interest element and increase the impact on family life. Lastly, as a result of the above it is likely that the public interest will outweigh the article 8 rights of the family unless the interference is exceptionally severe.

In ZH (Tanzania) v Secretary of State for the Home Department[2011] UKSC 4, [2011] 2 AC 166 the Supreme Court considered the potential impact of H’s deportation on the article 8 rights of her two children, British citizens who had always lived here. The United Nations Convention on the Rights of the Child required that the best interests of the child shall be a primary consideration (not, it should be noted, the primary consideration or the paramount consideration, [11]), although they can be outweighed by the cumulative effect of other considerations [15].

The approach of the court to article 8 rights is not “radically different” as between extradition and expulsion cases [29]. The countervailing public interest arguments may be different, in particular because extradition is an obligation owed by the requested state to the requesting state, but the balancing process involves asking the central question set out above. In all cases there must be a careful analysis under article 8 of the potential effects of extradition [31, 32]. For guidance as to procedure in respect of gathering evidence, see [82-86].

In respect of FK, her extradition would have a severe effect on her two youngest children, who would lose their primary attachment figure. That loss could have a lasting impact on their development. Their father, though well-intentioned, is unlikely to be able to fill that gap [44]. The alleged offences are not trivial but are of no great gravity [45]. There is no prosecutorial discretion in Poland and there has been considerable delay which may indicate the importance attached to her offending by the Polish authorities [46]. The public interest in extraditing FK does not justify the inevitable harm that it would cause to the lives of her children [48].

In the Italian case, the extradition of both parents would have a severe impact on the children. However, having regard to the limited role of HH in the children’s lives and the central part she played in the very serious offences committed, the interference with the rights of the children is outweighed by the public interest in her extradition. On this point all members of the Court agree. As regards PH, the majority conclude that he ought to be extradited also. Lord Judge notes that in the domestic sentencing context judges have for many years considered the effects of imprisonment on the children of offenders. Unfortunately, the seriousness of the offences committed often means that innocent members of the offender’s family will suffer as a result of their crimes [130, 131]. Given the nature of the crimes committed by PH, the public interest in extradition outweighs the interference with the rights of his children [135-138], a sentiment echoed by the majority: Lord Hope, [94]; Lord Brown, [96]; Lord Mance, [103]; Lord Kerr, [149]; and Lord Wilson at [170-172]. Lady Hale would have found that the current effect on the children and in particular the youngest is such that the extradition of their father in addition to their mother is not justified at present [79].

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One thought on “Interests of children should not prevent extradition for serious offences”

These cases are no different than Immigration appeals on Article 8 grounds; it is no defence to use children to safeguard an execution of removal where the offence is so serious as to extinguish that right. Even cases of persistent trivial offences again leads to the conclusion that public interest must be served and upheld.

However, each case must be based on merit with a balance between public interest and private interest. Separation of a family is an important issue but must not be used to frustrate public decency.

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